The Law Surrounding Domestic Abuse in England and Wales

Elizabeth Barlow, student at The University of Winchester, analyses the changes brought about by the Domestic Abuse Act 2021.

Until recently the term ‘domestic violence’ has been used to describe abuse in the family home. However, the very word ‘violence’ indicates a physical assault and therefore disregards the many other forms of abuse that both men, women and children can experience.

The move to the term ‘domestic abuse’ has been enshrined in statute with the new Domestic Abuse Act 2021. Section 1(3) of the act establishes the different forms of abuse, including but not limited to violent or threatening behaviour, economic abuse and coercive and controlling behaviour.

Unfortunately coronavirus and the cost-of-living crisis have added pressure to many households, which in turn has seen a large increase in domestic abuse cases.

The need for reform came from the substantial lack of guidance and assistance for victims. The lack of duty on local and national authorities to offer help and support, and the outdated outlook on what domestic abuse consisted of.

Following 2021, authorities now have a duty to provide appropriate and safe accommodation for a person or family fleeing abuse. It also ensures that fleeing abuse does not result in the loss of right to lifetime or assured tenancies when these were in place.

For the first time local authorities will be held accountable following the creation of the Domestic Abuse Commissioner. They will also report back annual statistics to consider best how to tackle the problem as well as establishing a chain of command and processes to improving the support services

One significant change sees the recognition of children in the abuse cycle. Prior to 2021 children could witness horrors within the family home and were simply considered witnesses. Now, however, a child who witnesses abuse will be treated as a victim in their own right.

With emotional abuse being recognised within statute it would be contradictory to leave children as witnesses when the sheer emotional effects of witnessing abuse are, in fact, a form of abuse all of its own. This welcome change affords them further protection and support.

As well as children, both men and women suffer domestic abuse. However, it is significantly disproportionate and is still very much a gendered offence. A lot of abuse comes following what is known as a ‘trigger point’.

The most common trigger points are pregnancy, post-separation, drug and alcohol use and chronic illness. This can be when most abuse starts or gets worse during a relationship.

Practice Direction 12J guides the judiciary in child arrangements proceedings where there is alleged domestic abuse, and it clarifies that domestic abuse can be a single incident or a series of incidences.

It also goes into more detail on ‘Coercive and Controlling’ behaviour, a form of abuse that is by no means new, but newly recognised in law.

It includes acts of assault, intimidation, and humiliation, where the perpetrator desires to make the victim feel subordinate or dependant by isolating them. If you are a victim or know of a victim of domestic abuse you can make an application to obtain disclosure from the alleged perpetrator.

The introduction of the Domestic Violence Disclosure Scheme (DVDS), first implemented in 2014 and known more widely as Clare’s Law, allows the police to disclose any relevant information regarding a partner or ex-partner.

This is managed in two ways, by establishing a ‘right to ask’ and a ‘right to know’. This enables the victim to make informed choices on whether they should leave a relationship for their own protection or refrain from going back.

Sadly, on average, a victim of domestic abuse returns to the abuser seven times before they leave for good. Either the victim or a family member can make an application for disclosure.

Anyone suffering abuse can reach out to a number of organisations for initial help, including a solicitor for legal advice. Whilst some people will be eligible for legal aid, the service is stretched far beyond its means and many people cannot access it.

With that in mind, domestic abuse is not discriminatory, and anyone can be a victim regardless of wealth. With increasing use of social media, victims are open to newer forms of abuse such as ‘revenge porn’.

Revenge porn is the disclosure of any sexual photographs or videos with intent to cause distress. The most recent case involved celebrity Stephen Bear, who was sentenced to 21 months’ imprisonment for voyeurism and two counts of “revenge porn”.

This case highlighted that even those in the public eye still have a right to privacy and that the law would not enable perpetrators to abuse this right. However, whilst the Act supports some groups of people, it’s support tis lacking for others.

The new Domestic Abuse Act is far from perfect, there have been criticisms over its lack of protection for migrant women and for not making judicial training mandatory in order to ensure judges have a deeper understanding of domestic abuse and its many forms.

Yet it has been praised for its forward thinking with regards to the inclusion of a new offence, Non-Fatal Strangulation (NFS). NFS has been a tool in which perpetrators hold over their victims, the act itself is a way of them showing the victim they quite literally hold their life in their hands.

Considering the long-term medical effects of partial asphyxiation, making NFS a criminal offence of its own is a welcome change.

Another positive addition relates to the court process, a process that can be incredibly intimidating to a survivor of domestic abuse. Being in the same room as the abuser is sometimes terrifying, and up until 2021 if the abuser was a litigant in person, they were entitled to cross-examine the victim themselves.

This was clearly not effective in ensuring a witness gave their best evidence.

Now, if an abuser is a litigant in person, they will ensure a separate third party is available to cross-examine where appropriate. The introduction of special measures has also made the court process a little easier for survivors, and are suitable in criminal, civil and family court.

A survivor can be kept separate from their abuser at all times, this may mean using a separate entrance at the courthouse, having a curtain drawn whilst in the witness box, giving evidence via video link or ensuring they have a special room to wait in whilst court is adjourned.

Ultimately, there are safeguarding measures in place to protect survivors of abuse all whilst allowing them to have their say. It is important to recognise the difficulties victims face and that the justice system provides an environment that allows them to speak up, whilst feeling safe and secure.

The law is by no means perfect but is certainly a step in the right direction to ensuring victims are supported.

The difficulty remains where the Act predominantly supports those pursuing criminal charges, which leaves a large gap for those pursing civil remedies following domestic abuse.

Where so many cases will fall short of the CPS threshold, there should be the ability and support for those who fall through the gap to utilise civil law whether it is to provide an injunction, by way of a non-molestation order, or to assist in a fact-finding hearing during children proceedings.

Either way, more must be done to offer protection, especially to those most vulnerable.

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